Tare, J.-

1. This appeal under section 23 of the Hindu Marriage Act, 1935 is by the plaintiff-husband against the decree, dated 23-8-1961 passed by Shri P. V. Muzumdar, First Additional District Judge, Indore, in Civil Suit No 22 of 1960 dismissing the petitioner's claim for restitution of conjugal rights under section 9 of the Act.

2. The appellant had presented his petition in the Court of the District Judge who, however, transferred the case for trial to the Court of the First Additional District Judge, Indore, in pursuance of a distribution memo dated 1-1-1960. The appellant sought restitution of conjugal rights on the allegation that the respondent had been married to him on 18-6-1941 and that she had left her husband's home some time in the year 1959 without any reasonable cause. It was also alleged that there were five issues born to the parties after the marriage.

3. The respondent denied that she was the married wife of the appellant. She also alleged that she feared physical injury at the hands of the appellant. She further alleged that the appellant's married wife lives with him in his own house.

4. The trial Judge held that the respondent had been the petitioner's keep and that at no time a marriage according to the caste. custom was per formed. In that view the petitioner was held disentitled to claim restitution of conjugal rights.

5. The learned counsel for the appellant argued that the Additional District Judge had no jurisdiction to try a petition under the Hindu Marriage Act, 1955. It was pointed out that as per section 3 (b) of the Act, 'district Court' means in any area for which there is a city civil Court, that Court, and in any other area the principal civil Court of original jurisdiction, and includes any other civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. It was further pointed out that the present petition had been filed on 25-7-1960 while the State Government had issued a notification No. 36802-11386-XXI.B, dated, 7-12-1960 published in Madhya Pradesh Gazette, dated, 23-12-1960, part 1, page 1936 under section 3 (b) of the Act empowering all the Courts of Additional District Judge to try cases under the Hindu Marriage Act, 1955. It was suggested that as such the subsequent authorization by the State Government could not empower the First Additional District Judge, Indore, to try cases retrospectively.

6. So far an empowering by the State Government under section 3 (b) of the Act is concerned, the contention of the learned counsel for the appellant is not without substance. It is true that the notification has not the effect of empowering the Additional District Judges to try cases retrospectively. However, that is not the end of the matter.

7. Section 19 of the Act requires that every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and the wife reside or last resided together. Further on section 21 of the Act provides that subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. By virtue of section 3 (b) of the Hindu Marriage Act, 1955, the State Government may have been authorized to empower the Courts of the Additional District Judges to try cases under the Act. But by virtue of the fact that the Court trying a case under the Hindu Marriage Act is a civil Court to which the provisions of the Civil Procedure Code are applicable except of the extent, as are modified by the specific provisions of the Act, we have to take into consideration the provisions of the Madhya Pradesh Civil Courts Act, 1958, Section 3 of the said Act classified the different Courts as under-

(i) The Court of the D